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Kavanagh v. Ogden Allied Maintenance Corp., 1998 N.Y. Int. 0138 (Nov. 18, 1998).

DISCOVERY - PHYSICAL EXAMINATIONS


ISSUE & DISPOSITION

Issue

Whether the need for discovery outweighed any special burden borne by the protesting party.

Disposition

Yes. Where an opportunity to present a competing assessment of a party's vocational abilities by an expert becomes imperative to the goal of ensuring a fair trial, the need for discovery outweighs the burden placed on the protesting party.

SUMMARY

The New York Court of Appeals affirmed an order by the Appellate Division to compel discovery in a personal injury case.  Discovery statute, CPLR 3121 authorizes examinations by a designated physician. Plaintiff retained a non-physician vocational rehabilitation expert to testify that examinations showed the plaintiff was unable to perform in the workplace.  The court held that by doing so, plaintiff made vocational rehabilitation assessment procedures, in the words of discovery statute CPLR 3101, "material and necessary in theÄdefense" for rebuttal purposes.  Although plaintiff would have to submit to extensive vocational assessment procedures, the need for discovery outweighed the burden on the protesting party, thus compelling discovery to ensure a fair trial.


Prepared by the liibulletin-ny Editorial Board.